The Court of Appeals’ Anti-TABOR Decision
March 17, 2014 by Rob Natelson
The U. S. Court of Appeals for the Tenth Circuitrecently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.
However, the Court of Appeals addressed only standing and justiciability issues, and allowed further hearings on the Guarantee Clause issue.
The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR,which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,” in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)
Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports. Continue reading
Thirty-three hifalutin members of Colorado’s political elite — state legislators, former legislators, board of education officials, city and county politicians, and assorted insiders — are whining as plaintiffs in what’s called a federal case.
Why? They lost an election … in 1992! Now, as the federal 10th Circuit Court of Appeals put it, “Plaintiffs claim that they have been deprived of their power over taxation and revenue.”
Over 22 years ago, Coloradans petitioned the Taxpayer Bill of Rights onto the ballot and voters passed it. Known as TABOR, the constitutional amendment limits the growth of government spending, unless voters approve higher spending levels. It also requires voter approval for tax increases, except in an emergency. The politicians objected at the time, but have since lacked both the courage and the democratic sensibility to take the issue back to the people.All this by routine.
Instead, they’re suing to overturn the result. Continue reading
In 1992 the people of Colorado voted to amend their Constitution with adoption of a Taxpayer Bill of Rights (TABOR). This was a historic initiative that put the power in the hands of the people to decide for themselves whether to approve new taxes or tax-hikes. While many states have constitutional protections to prevent new or increased taxes—such as California’s requirement of a supermajority vote in the legislature—Colorado’s TABOR was unique in that it made the citizens of the state the final word on new taxes or increased taxes. TABOR therein served as a model that has been implemented through constitutional amendments in other states, and which NFIB has supported as a means of protecting small business owners from new and ingenious taxing schemes. But TABOR is under attack—and this may have profound implications, not only in Colorado but throughout the country.
TABOR’s Legal Challenges
TABOR was upheld as constitutional in the Colorado Supreme Court last year in the face of a lawsuit advanced by educators and the parents of school-aged children who complained that TABOR makes it harder for schools to get necessary funding. NFIB Small Business Legal Center filed in that case to defend the law, and we were pleased to see the Court ultimately affirm the constitutionality of TABOR. But TABOR faces yet another challenge—this time in federal court. Continue reading
Earlier this month, you were saved by the Taxpayer’s Bill of Rights.
Powerful political interests put Amendment 66, a yearly billion-dollar tax increase, on the Nov. 5 ballot and promoted it as a school-funding measure. Coloradans didn’t buy it. Despite millions spent promoting it, 66 was soundly defeated at the ballot box by almost 2-to-1. News media, pundits and pollsters reported Amendment 66’s defeat, but many lost sight of the only reason Coloradans got to vote on the measure: TABOR.
Coloradans had a powerful voice in this important decision for one reason only: the Taxpayer’s Bill of Rights. TABOR grants Colorado citizens the right to vote on any tax increase. “Want more money, Mr. Politician? OK, but you must ask us first!” An overwhelming majority of citizens determined that Amendment 66 did not offer the right trade-off between family budgets and government burden. The majority of Colorado voters also proved skeptical that just one more K-12 funding increase would solve the problem this time.
TABOR mandates that, when any Colorado government proposes new taxes or debt, that government must first ask voters’ approval. It is one more check in our American system of checks and balances. Continue reading
Posted: Friday, April 19, 2013 12:00 am
I happen to know that in 2007, Denver was able to purchase Ford Crown Victoria police cars for about $15,000 apiece. Today, according to The Denver Post, it costs Denver about $40,000 to purchase and equip a midsize police car. This is just one example of the inflation affecting local government.
The city of Pueblo apparently has reached a crisis point in its ability to fund basic law enforcement, animal control and housing of city prisoners.
Most Coloradans are aware and approve of TABOR’s provision requiring voter approval of new or increased taxes. Many people are less aware of the internal restrictive mechanisms of TABOR that prohibit full collection of taxes even at those voter-approved tax rates. Last November, Denver voters
overwhelmingly approved a permanent elimination of TABOR from their city’s property tax collection. It is estimated that this action will provide Denver with an additional $40 million or so in revenue annually, without actually raising previously voter-approved tax rates.
In so doing, Denver joined the approximately 85 percent of Colorado municipalities and over 90 percent of school districts that have suspended or eliminated TABOR from their tax collection activities (while preserving
the right of voter approval of taxes). Both Pueblo County and Canon City, among other jurisdictions, have suspended the operation of TABOR in their jurisdictions for a period of years.
I suggest that it is time for the city of Pueblo to analyze whether suspending or eliminating TABOR with respect to its property and/or sales tax collection would provide enough additional revenue to address some of its current urgent needs. If so, I believe that the city should put this matter before the voters. Pueblo should stop being an outlier when its quality of life is at risk.
By Rob Natelson**
If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too democratic to meet the Constitution’s mandate that it have a “republican form of government.”
A new Independence Institute Issue Paper, which I authored, examines those assertions in detail. The Paper shows that both are essentially myths.
The nation’s best-known measure requiring voter approval of most tax hikes is Colorado’s Taxpayer Bill of Rights (TABOR), adopted by the voters in 1992. This Issue Paper is published in response to a legal attack on TABOR: A group of government apologists has sued in federal court claiming that by limiting legislative control over fiscal measures, Colorado has violated the U.S. Constitution.
In a nutshell, the new Issue Paper finds:
* The American Founders did not firmly distinguish between a “republic” and a “democracy.” Some used the two words as if they were synonymous. Some adopted the view of Montesquieu that there were two kinds of republics: (1) Those controlled by a few (aristocracies) and (2) those controlled by the many (democracies).
* Dictionaries of the time defined “republic” as merely a popular government, as opposed to a monarchy. One encyclopedia-type dictionary included an article tracking Montesquieu’s definitions. Continue reading